ATTORNEYS:On
behalf of the plaintiff-appellant, the cause was submitted on the briefs of
James W. Conway, city attorney for Kenosha.

Respondent

ATTORNEYS:On
behalf of the defendant-respondent, Labor and Industry Review Commission, the
cause was submitted on the brief of William W. Cassel of Madison, and
on behalf of the defendant-respondent, Thomas R. Knight, the cause was
submitted on the brief of Richard Thal of Wisconsin Professional
Police Association.

COURT OF APPEALS

DECISION

DATED AND FILED

May 3, 2000

Cornelia G. Clark

Clerk, Court of Appeals

of Wisconsin

2000 WI App 131

NOTICE

This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

No.99-1456

STATE OF WISCONSININ COURT OF APPEALS

City
of Kenosha,

Plaintiff-Appellant,

v.

Labor
and Industry Review Commission

and
Thomas R. Knight,

Defendants-Respondents.

APPEAL from an order of
the circuit court for Kenosha County:MARY KAY WAGNER-MALLOY, Judge.Affirmed.

Before Brown, P.J.,
Nettesheim and Snyder, JJ.

¶1NETTESHEIM, J.This is an unemployment compensation case involving a suspended
police officer.Wisconsin Stat. § 108.04(6)
(1997-98)[1]
states that an employee who is suspended for good cause is ineligible to
receive unemployment compensation benefits “until 3 weeks have elapsed since
the end of the week in which the suspension occurs.”The issue is whether the suspended officer’s ineligibility period
under the statute is measured from the date of the suspension with pay or from
the later suspension without pay.The
Labor and Industry Review Commission (LIRC) ruled that the officer’s ineligibility
is measured from the date of the officer’s initial suspension with pay.The circuit court upheld this
determination.The employer, the City
of Kenosha, appeals.Because the
statute in question makes no distinction between a suspension with pay and a
suspension without pay, we agree with the LIRC determination.We therefore affirm the circuit court order.

FACTS

¶2The facts are undisputed.On February 2, 1998, the City filed charges
of improper conduct against police officer Thomas R. Knight and suspended him
pending resolution of the charges at a hearing before the Kenosha Police and
Fire Commission (PFC).In accordance
with Wis. Stat. § 62.13(5)(h),
which mandates that suspended police officers shall be suspended with pay
pending disposition of charges, Knight’s suspension was with pay.

¶3Following a hearing, the PFC issued a
decision on April 13, 1998, finding Knight guilty of the charges.As a penalty, the PFC suspended Knight
without pay from April 14, 1998, through June 2, 1998.Knight applied for unemployment benefits
that same week.Pursuant to Wis. Stat.
§ 108.04(6),
the Department of Workforce Development (Department) determined that Knight was
eligible for benefits commencing three weeks following his initial suspension
with pay.

¶4The City appealed the Department’s
determination of Knight’s eligibility.Following a hearing, an administrative law judge (ALJ) upheld the
Department’s determination.The ALJ
found Knight “ineligible for benefits in weeks 6 through 9 of 1998” and
“[t]hereafter … eligible for benefits, if otherwise qualified.”The ALJ said that this result was mandated
by the “clear statutory language requiring commencement of the benefit
suspension period during the week the suspension ‘occurs.’”

¶5The City next appealed to LIRC.The City argued that a suspension with pay
was not a disciplinary suspension within the meaning of Wis. Stat. § 108.04(6) but, rather, more akin to an “administrative
leave.”The City also argued that
Knight was not unemployed during the period of his suspension with pay within
the meaning of Wis. Stat. § 108.02(15)(a)
and therefore was not eligible for benefits within the meaning of
§ 108.02(11).

¶6LIRC affirmed the ALJ’s decision.Echoing the ALJ, LIRC stated that Wis. Stat.
§ 108.04(6) “makes no
distinction between a suspension with pay and a suspension without pay as to
when the week of suspension begins” and that it “begins when the suspension is
imposed regardless of how the employer characterizes the suspension.”

¶7The City appealed the LIRC decision to the
circuit court.After reviewing the
record and briefs submitted by the parties, the court agreed with LIRC’s
reading of Wis. Stat. § 108.04(6)
and affirmed its decision.The City
further appeals to this court.

STANDARD OF REVIEW

¶8On appeal, we review the decision issued by
LIRC rather than that of the circuit court.See Stafford Trucking, Inc. v. DILHR, 102 Wis. 2d 256,
260, 306 N.W.2d 79 (Ct. App. 1981).We
do not weigh the evidence or pass upon the credibility of the witnesses, and we
will uphold LIRC’s findings of fact on appeal if they are supported by credible
and substantial evidence in the record.See Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450
(Ct. App. 1996); Wis. Stat. § 102.23(6).Here, the facts are not disputed.

¶9Once the facts are established, their
application to the statute or legal standard is a question of law.See Minuteman, Inc. v. Alexander,
147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989).Depending on the level of expertise an agency has acquired in the area
in question, we may defer to its legal determination.See Barron Elec. Coop. v. PSC, 212 Wis. 2d 752,
760-64, 569 N.W.2d 726 (Ct. App. 1997).Our supreme court has identified three levels of deference to agency
decisions:great weight deference, due
weight deference and de novo review.See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57
(1996).Which level is appropriate
“depends on the comparative institutional capabilities and qualifications of
the court and the administrative agency.”Id. (citation omitted).A de novo standard of review is only applicable when the issue before
the agency is clearly one of first impression.See id. at 285.

¶10In this case, LIRC concedes that a de novo
standard of review is appropriate because the agency has not previously ruled
on the specific issue before us.We
accept that concession and will analyze the issue on a de novo basis.

DISCUSSION

¶11The City argues that LIRC erred in its
interpretation of the relevant provisions of the unemployment compensation
statutes by premising its ruling on the fact that Wis. Stat. § 108.04(6) makes no distinction between a
suspension with pay and a suspension without pay.The City also argues that LIRC erred because the unemployment
compensation statutes were “created to provide benefits to employees who were
‘unemployed,’ and ‘unemployed’ means receiving no wages.”

¶12The ultimate question turns on the
interpretation of Wis. Stat.
§ 108.04(6).Our goal in
interpreting statutes is to ascertain the intent of the legislature.See MCI Telecomms. Corp. v. State,
203 Wis. 2d 392, 400, 553 N.W.2d 284 (Ct. App. 1996), aff’d, 209 Wis. 2d
310, 562 N.W.2d 594 (1997).We first
look to the language of the statute.See
id.If the plain meaning of
the statutory language is clear, we do not look to rules of statutory
construction or other extrinsic aids.See
id.Instead, we simply apply
the language of the statute to the facts before us.See id.Only if the statute is ambiguous do we examine the scope, history,
context, subject matter and purpose of the statute.See id.However, we may also consider the interpretation of the agency
charged with a statute’s administration.See id.

¶13The relevant language of Wis. Stat. § 108.04(6)
reads as follows:

Disciplinary suspension.An employe whose work is suspended by an employing unit for good cause
connected with the employe’s work is ineligible to receive benefits until 3
weeks have elapsed since the end of the week in which the suspension occurs or
until the suspension is terminated, whichever occurs first.

¶14In calculating the employee’s eligibility for
benefits, this section does not distinguish between types of suspensions,
particularly those with or without pay.As LIRC pointed out, the statute simply says that three weeks must elapse
from “the end of the week in which the suspension occurs.”Id. (emphasis added).The language is plain and unambiguous, and
it is well established that “‘[w]e do not look beyond the plain and unambiguous
language’ of a statute.”L.L.N.
v. Clauder, 203 Wis. 2d 570, 593, 552 N.W.2d 879 (Ct. App. 1996)
(citation omitted), rev’d on other grounds, 209 Wis. 2d 674, 563 N.W.2d
434 (1997).The City’s argument that
the term “suspension” in Wis. Stat. § 108.04(6)
applies only to suspensions without pay requires us to read language into the
statute that simply is not there.That
is neither our function nor our privilege.Utilizing the plain and unambiguous language of the statute, we uphold
LIRC’s determination that the three-week period of benefits ineligibility
properly began when Knight was first suspended, regardless of the fact that his
suspension was with pay.

¶15The City contends, however, that public
policy considerations support its argument, thus requiring us to adopt its view.The City observes that the unemployment
compensation statutes were “created to provide benefits to employees who [are]
‘unemployed,’ and ‘unemployed’ means receiving no wages.”The City then cites to the general
definitions of “eligibility” and “employment” as set out in Wis. Stat. § 108.02(11) and (15)(a),
respectively.The former says that
“[a]n employe shall be deemed ‘eligible’ for benefits for any given week of the
employe’s unemployment ….”Section
108.02(11).The latter defines
“employment” as “any service … performed by an individual for pay.”Section 108.02(15)(a).

¶16We,
of course, take no issue with the City’s statement that the purpose of the
unemployment compensation law is to provide benefits to those who have lost
employment wages.However, Knight has
lost employment wages because of his suspension without pay.He therefore is eligible for benefits,
subject to the method of eligibility computation prescribed by the legislature.That method is specifically addressed by Wis. Stat.
§ 108.04(1),
not by the general definitions for “employment” and “eligibility” set out in Wis. Stat.
§ 108.02(15)(a)
and (11), respectively.It is
well settled that specific sections govern over general ones.[2]See State ex rel. Auchinleck v. Town
of LaGrange, 200 Wis. 2d 585, 595-96, 547 N.W.2d 587 (1996).

¶17We agree with the City that some may find it
anomalous that the period of ineligibility for unemployment compensation
benefits does not take in the full period of a suspension with pay.But that is the legislatively prescribed
effect of Wis. Stat. § 62.13(5)(h),
which mandates suspension with pay for a suspended police officer until a
hearing, and Wis. Stat. § 108.04(6), which
measures unemployment compensation eligibility from three weeks following such
a suspension.While perhaps unusual, we
are not prepared to say that such an interpretation is unreasonable, absurd or
contrary to public policy.The
legislature is presumed to know the law when it writes statutes. See State v. Trongeau, 135 Wis.
2d 188, 192, 400 N.W.2d 12 (Ct. App. 1986).If the legislature sees this as a problem, it is free to correct
it.But we will not rewrite the
statute.See Michael T. v. Briggs,
204 Wis. 2d 401, 410, 555 N.W.2d 651 (Ct. App. 1996).

CONCLUSION

¶18We reject the City’s argument that Knight’s
period of ineligibility commenced when his suspension was changed from one with
pay to one without pay.Instead, we
agree with LIRC’s determination that Knight’s period of ineligibility for
unemployment compensation benefits commenced when he was first suspended with
pay and ended three weeks thereafter pursuant to the clear language of Wis. Stat.
§ 108.04(6),
which makes no distinction between suspensions with or without pay.Therefore, we affirm the circuit court order
upholding the LIRC determination.

By the Court.—Order
affirmed.

[1] All
references to the Wisconsin Statutes are to the 1997-98 version unless
otherwise noted.

[2] The City
also cites to the statutory subsections that define “partial unemployment” and
“total unemployment,” see Wis. Stat. § 108.02(20) and (25),
and the provisions that set out the actual benefits payable when such
conditions of unemployment exist.See
Wis. Stat. § 108.05(1)(j),
(3).However, these sections
shed no light upon the issue before us.They simply describe degrees of unemployment and the attendant benefits.